Federal prosecutors in Washington have recommended that criminal charges be filed against Andrew McCabe, the FBI’s former deputy director, and the Justice Department has rejected a last-ditch appeal by McCabe’s lawyers, according to a report on Thursday by Fox News. This clears the way for what appears to be McCabe’s imminent indictment.
Jesse Liu, the U.S. attorney for the District of Columbia (appointed by Trump), has reportedly decided that McCabe should be charged. The decision was based on a referral by the Justice Department’s inspector general (appointed by Obama), Michael Horowitz. In a comprehensive report last year, issued after a probe of a leak of investigative information to the media orchestrated by McCabe, Horowitz found that McCabe had misled investigators, including making false statements under oath. As we observed here when the IG’s report was released, the case laid out by Horowitz appears compelling.
The Fox report indicates that Liu signaled to McCabe’s lawyers that she was persuaded to file charges. McCabe’s lawyers then appealed that decision to Jeffrey Rosen, the deputy attorney general (DAG). At least one source told Fox that McCabe’s team received an email from the Justice Department, which states: “The Department rejected your appeal of the United States Attorney’s Office’s decision in this matter. Any further inquiries should be directed to the United States Attorney’s Office.”
In the Justice Department chain of command, U.S. attorneys (who are presidential appointees confirmed by the Senate) report to the DAG. For most crimes, including false-statements offenses, the district U.S. attorney does not need authorization from the Justice Department to file charges. Nevertheless, in light of the facts that McCabe was a high-ranking Justice Department official (the FBI is part of DOJ) and that the potential charges stem from a Justice Department IG investigation, it makes sense that the district’s chief prosecutor would stay her hand to allow McCabe the opportunity to appeal to the Justice Department.
McCabe has indicated that, if charged, he would claim that the Justice Department was indicting him because of pressure from the White House. President Trump has been an unrestrained critic of McCabe, accusing him of rampant corruption.
There are reasons for the Justice Department to be concerned that the president’s public drumbeat would redound to McCabe’s benefit. An indictment would likely lead to a jury trial in Washington, where the president is unpopular.
Given those circumstances, though, the facts of the case against McCabe are attractive for prosecutors. For one thing, these facts are unrelated to Trump. While McCabe was among the principal investigators in the FBI’s Trump-Russia investigation, his leak did not involve that probe. Rather, he leaked the existence of the FBI’s Clinton Foundation investigation. Even in congressional testimony, the FBI’s then-director, James Comey, had tried to keep the existence of that investigation confidential (as the FBI customarily does with investigations). Yet McCabe orchestrated the leak, apparently for personal reasons — viz., to refute the suggestion that he and the FBI were in the tank for Clinton.
Moreover, according to the IG, McCabe at one point dressed down the FBI’s chiefs in New York and Washington, as if their field offices were responsible for the leak. That is, he knew that he himself was the culprit, yet he tried to shift suspicion and blame to innocent agents. If proved, that is the kind of fact that would not endear McCabe to a jury. It would also make it hard for him to portray himself as a fundamentally honest guy who would never deceive other FBI agents.
McCabe’s exhaustion of the opportunity to appeal to the Justice Department would suggest that his indictment is imminent. Meanwhile, the IG continues to examine alleged investigative abuses in connection with the Trump-Russia probe, and a Justice Department prosecutor, Connecticut U.S. attorney John Durham, is also investigating the origins and conduct of that probe. Consequently, McCabe will remain under the microscope.